Robert Kirkness
Robert has a broad commercial, public and international law practice. He appears as counsel for private clients, State agencies and the Crown in commercial and public law disputes before the New Zealand courts. Robert also acts as counsel for States, corporations and individuals in disputes before international courts and tribunals. In addition to counsel work, Robert serves as arbitrator in international commercial disputes.
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General Civil Litigation
New Zealand College of Midwives & Ors v. Ministry of Health (CIV-2022-485-558). Representing the plaintiffs in High Court class action proceedings on behalf of the midwifery sector alleging breach of a settlement agreement and unconscionable conduct by the Crown for failure to establish a national midwifery agreement and pay a fair and reasonable service price to midwives. Ongoing.
Smith v. Fonterra Co-operative Group Ltd & Ors SC 149/2021. Representing the Human Rights Commission (as intervenor) before the Supreme Court in climate change litigation. The plaintiff has brought claims in public nuisance, negligence and an innominate tort against seven major New Zealand companies regarding the impact of their fossil fuel emissions on his whenua and sites of cultural and historical significance to him and his whānau. Ongoing.
Pilgrim & Ors v. Attorney-General & Ors EMPC85/2022. Counsel assisting the Employment Court in proceedings about whether six former female members of the Gloriavale Christian Community Church who worked doing cooking, cleaning, washing and sewing for the community are employees under New Zealand law. Ongoing.
Courage & Ors v. Attorney-General & Ors [2022] NZEmpC 77. Counsel assisting the Employment Court in proceedings about whether three former male members of the Gloriavale Christian Community Church who worked in the businesses run by the community are employees under New Zealand law.
Cridge v. Studorp Ltd [2021] NZHC 2077, [2022] 2 NZLR 309. Representing the defendant product manufacturer in the High Court in class action proceedings alleging negligence and breach of consumer protection legislation.
Advising New Zealand Petroleum & Minerals on oil and gas permits and the Crown Minerals Act 1991.
Representing the plaintiffs in proceedings against an engineering firm, construction company and local authority alleging breach of contract, negligence, and breach consumer protection legislation in a large-scale commercial development. Matter settled.
Commissioner of Police v. Rodriguez & Ors [2019] NZHC 3265 and [2020] NZCA 589. Representing the first respondent in the High Court and Court of Appeal in proceedings brought by the Commissioner of Police seeking a restraining order under the Criminal Proceeds (Recovery) Act 2009. Ongoing.
Couch v. Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149 (SC). Representing the Attorney-General in strike-out proceedings relating to a claim for exemplary damages and their availability in New Zealand despite the ACC bar on claims for personal injury.
Public law / judicial review
Attorney-General v. Chisnall (SC26/2022). Representing the Human Rights Commission (as intervenor) before the Supreme Court in proceedings regarding the court’s jurisdiction to grant declarations of inconsistency under the New Zealand Bill of Rights Act 1990 in respect of statutory provisions. The plaintiff is seeking a declaration that interim detention orders preventing the release of offenders from custody is inconsistent with various rights under the New Zealand Bill of Rights Act 1990. Ongoing.
New Zealand Independent Community Pharmacy Group Inc v. Health New Zealand | Te Whatu Ora & Ors (CIV-2022-485-11). Representing the plaintiff in judicial review proceedings against the Ministry of Health, Health New Zealand | Te Whatu Ora and Countdown supermarkets challenging decisions to grant pharmacy contracts to certain Countdown pharmacies on health equity grounds and to grant licenses to Countdown pharmacies given the effective control restriction on pharmacy ownership in New Zealand. Ongoing.
Smith v. Attorney-General (CA404/2022). Representing the Human Rights Commission (as intervenor) before the Court of Appeal in climate change litigation. The plaintiff has brought claims against the Attorney-General alleging breach of public law duties regarding the impact of fossil fuel emissions on his whenua and sites of cultural and historical significance to him and his whānau. Ongoing.
Hoban v. Attorney-General [2023] NZHC 222. Representing the plaintiff in proceedings seeking leave to appeal from the High Court to the Supreme Court and in subsequent appeal proceedings. The plaintiffs is seeking a declaration that a statutory provision prohibiting racist hate speech but not other types of hate speech, including hate speech directed at people because of their sexual orientation, is inconsistent with the right to freedom from discrimination on the basis of sexual orientation under the New Zealand Bill of Rights Act 1990. Ongoing.
Thorndon Quay Collective Inc v. Wellington City Council (CA554/2022). Representing the appellant, which is comprised of small business owners, on an appeal from a judicial review regarding the approach taken by the Wellington City Council when deciding to remove carparking along Thorndon Quay. Ongoing.
H v. Minister for Immigration [2019] NZHC 2870 (HC); [2020] NZCA 562; [2021] NZSC 192. Representing the Crown in the High Court, Court of Appeal and Supreme Court in its defence of judicial review proceedings challenging the validity of the government’s policy that persons involved with organisations that have committed gross human rights violations are deemed ineligible for residence class visas.
Afghan Nationals v. Minister for Immigration [2021] NZHC 3154; [2022] 2 NZLR 102. Representing the Crown in its defence of judicial review proceedings brought against it by certain Afghan nationals who had applied for residence in New Zealand but whose applications had stopped being processed.
Afghan Nationals v. Minister for Immigration [2021] NZHC 2261; [2022] 2 NZLR 98. Representing the Crown in its defence of an application for interim relief by certain Afghan nationals seeking to have interim order made granting them visas.
Minister of Justice & the Attorney-General v. Kim (SC 57/2019). Representing the Human Rights Commission (as intervenor) in the Supreme Court in a case relating the effectiveness of diplomatic assurances where New Zealand is considering the surrender of a person under the Extradition Act 1999 to a State where there is a risk of a breach of that person’s fundamental human rights.
Attorney-General v. Tamil X [2009] NZCA 48, [2010] 2 NZLR 73 (CA); [2010] NZSC 107 (SC). Representing the Attorney-General in judicial review proceedings regarding the circumstances in which a refugee claimant is excluded from the Refugee Convention on the grounds of suspected complicity in international crimes.
Commerce Commission v. Air New Zealand & Ors [2011] NZCA 64; [2011] 2 NZLR 194 (CA). Representing the Attorney-General (as intervenor) in judicial review proceedings concerning the scope of suppression orders imposed on Air New Zealand executives interviewed by the Commerce Commission during the course of an investigation and whether those orders complied with the right to freedom of expression under the New Zealand Bill of Rights Act 1990.
Criminal Appeals
Fitzgerald v. The Queen [2021] NZSC 131; [2021] 1 NZLR 551 (SC). Representing the Human Rights Commission (as intervenor) in a criminal appeal before the Supreme Court regarding whether the three-strikes sentencing regime should be interpreted as subject to the right not to be subjected to disproportionately severe punishment under the New Zealand Bill of Rights Act 1990.
Abdula v. The Queen [2011] NZSC 130; [2012] 1 NZLR 534 (SC). Representing the Crown in a criminal appeal before the Supreme Court regarding whether the interpreting assistance provided to the appellant during his trial met the standard required under the New Zealand Bill of Rights Act 1990.
The Queen v. Steigrad [2011] NZCA 304; [2011] 10 NZCLC 264,862. Representing the Crown in a criminal appeal to reinstate certain charges under the Securities Act against the directors of a finance company in high-profile proceedings regarding the duties of directors to update information in a securities prospectus.
Climate change litigation
Smith v. Fonterra Co-operative Group Ltd & Ors (SC 149/2021). Representing the Human Rights Commission (as intervenor) before the Supreme Court in climate change litigation. The plaintiff has brought claims in public nuisance, negligence and an innominate tort against seven major New Zealand companies regarding the impact of their fossil fuel emissions on his whenua and sites of cultural and historical significance to him and his whānau. Ongoing.
Smith v. Attorney-General (CA404/2022). Representing the Human Rights Commission (as intervenor) before the Court of Appeal in climate change litigation. The plaintiff has brought claims against the Attorney-General alleging breach of public law duties regarding the impact of fossil fuel emissions on his whenua and sites of cultural and historical significance to him and his whānau. Ongoing.
Greenpeace Aotearoa Inc. v. Hiringa Energy Ltd and Balance Agri-Nutrients & Ors (CA649/2022). Representing ngā hapū on an appeal from the High Court regarding whether a consent granted to develop an energy project in Taranaki under the COVID-19 fast-track consenting process was consistent with the principles of the Treaty of Waitangi. Ongoing.
Investment treaty arbitration
Clara Petroleum Ltd v. Romania (ICSID Case No. ARB/22/10). Representing Romania in an ICSID arbitration brought by a UK-based petroleum company under the Energy Charter Treaty. Ongoing.
ICSID investment treaty arbitration arising out of alleged expropriation of concession. Representing a consortium of foreign investors in an ICSID arbitration against a Central American State regarding the alleged expropriation of an oil & gas concession.
Elliott Associates, LP v. The Republic of Korea (until 31 December 2018). Representing the Republic of Korea in an investment treaty arbitration under the 2013 UNCITRAL Rules brought by a US-based hedge fund under the Korea-United States Free Trade Agreement.
Mohammad Reza Dayyani & Ors v. The Republic of Korea. Representing the Republic of Korea in an investment treaty arbitration brought against it by Middle Eastern investors under the 1976 UNCITRAL Rules. The dispute arises out of alleged political interference in a failed M&A transaction.
UNCITRAL investment treaty arbitration arising of out alleged confiscation of real estate assets. Representing a Southeast Asian State in an investment treaty arbitration under the 2010 UNCITRAL Rules brought against it by a dual national and related entity.
Ampal-American Israel Corporation & Ors v. The Arab Republic of Egypt (ICSID Case No. ARB/12/11). Representing a consortium of US and German investors in an ICSID arbitration against the Arab Republic of Egypt under the US-Egypt and Germany-Egypt bilateral investment treaties regarding the destruction of the Peace Pipeline Project for the long-term supply of Egyptian natural gas to Israeli customers. The arbitration is one of four parallel investment treaty and contract arbitrations.
Yosef Maiman & Ors v. The Arab Republic of Egypt (PCA Case No. 2012-26). Representing a consortium of Polish and Israeli investors in an arbitration under the 2010 UNCITRAL Rules against the Arab Republic of Egypt under the Poland-Egypt bilateral investment treaty regarding the destruction of the Peace Pipeline Project for the long-term supply of Egyptian natural gas to Israeli customers. The arbitration is one of four parallel investment treaty and contract arbitrations.
Rusoro Mining Ltd v. Venezuela (ICSID Case No. ARB(AF)/12/5). Representing Rusoro Mining Ltd, a Canadian investor, in an ICSID Additional Facility arbitration against the Bolivarian Republic of Venezuela under the Canada-Venezuela BIT regarding Venezuela’s failure to compensate Rusoro for the nationalisation of its gold mining assets.
International commercial arbitration
UNCITRAL arbitration under joint venture agreement. Representing a Chinese State-owned entity in an international commercial arbitration brought against it by a Canadian-listed oil and gas company pursuant to a joint venture agreement for the exploration and development of a natural gas field in the East China Sea.
ICC arbitration under share sale and purchase agreement. Representing a French conglomerate in an international commercial arbitration brought against it by a Mauritian investment company for its alleged breach of an agreement for the sale and purchase of shares in a Korean listed company.
CRCICA arbitration under a long-term gas supply agreement between Egyptian State-owned entities and an Egyptian company. Representing an Egyptian company in an international commercial arbitration brought against it by two Egyptian State-owned entities under the CRCICA Rules alleging various breaches a long-term contract for the supply of Egyptian natural gas by my client to Israeli customers through a pipeline under the Mediterranean Sea that my client owned and operated. My client counterclaimed for repudiation of the agreement. The arbitration is one of four parallel investment treaty and contract arbitrations.
ICC arbitration under a tripartite agreement between Egyptian State-owned entities, an Egyptian company and an Israeli State-owned entity. Representing an Egyptian company in an international commercial arbitration under the ICC Rules against two Egyptian state entities and an Israeli state entity alleging repudiation of a tripartite agreement guaranteeing the supply of Egyptian natural gas from the Egyptian state entities to the Israeli state entity. The arbitration is one of four parallel investment treaty and contract arbitrations.
ICC arbitration under two related joint venture agreements. Representing a US-based automotive company in negotiations with a Central Asian State-owned entity and parallel international commercial arbitration proceedings under the ICC Rules regarding the Central Asian State- owned entity’s alleged failure to comply with the exercise of put options under two related joint venture agreements for the manufacture, distribution and sale of vehicles.
ICC arbitration under joint venture agreement. Representing a leading Australian investment bank and several Korean pension funds in an arbitration under the ICC Rules regarding the alleged failure by a Korean media company to comply with the exercise of drag options under a joint venture agreement.
SIAC arbitration under joint venture agreement in the pharmaceutical sector. Representing a German pharmaceutical company in an arbitration under the SIAC Rules brought against it by a Vietnamese company regarding the alleged failure to comply with a non-compete provision in a joint venture agreement.
SIAC arbitration under joint venture agreement in the technology sector. Representing a Cypriot company in an arbitration under the SIAC Rules brought against it by a Singapore company regarding the alleged failure to make payments under a joint venture agreement for the manufacture and supply of smartphones.
Gas price review under a long-term agreement for the cross-border supply of natural gas. Representing a Greek importer of natural gas in its price review negotiations with a natural gas exporter and parallel international commercial arbitration under the ICC Rules concerning the price of natural gas under a long-term gas supply contract.
ICC arbitration under a long-term agreement for the cross-border supply of natural gas. Representing a leading German gas importer in an international commercial arbitration under the ICC Rules against a natural gas exporter under a contract regarding the value of natural gas and raising issues of EU competition law.
ICC arbitration over rights to use world famous trademark: Representing a US-based manufacturer in an international commercial arbitration against an Indian company under the ICC Rules concerning the geographic allocation of the right to make, use and distribute products bearing a famous trademark.
Pro bono work
Representing a national organisation for a cultural artform in a potential judicial review of a funding decision-making process.
Advising an international human rights organisation in respect of proceedings before the European Court of Justice challenging Hungary’s so-called “Stop Soros” legislative measures.
Advising an international human rights organisation in relation to the obligations of States relating to the UN Human Rights Council and its special procedures.
Advising an international human rights organisation on the obligations of the UN Security Council in respect of reprisals.
Advising an international human rights organisation on the status of certain civil society groups before the UN and its subsidiary organs.
Drafting a Model Law on Human Rights Defenders for an international human rights organisation.
Advising an international human rights organisation on the obligations of the President of the UN Human Rights Council and its Bureau in respect of reprisals against human rights defenders.
Advising an international human rights organisation in respect of the protection of female human rights defenders in Cote d’Ivoire.
Advising an international human rights organisation in respect of the application of the Yogyakarta Principles.
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Ranked as Global Leader in arbitration by Who’s Who Legal: International Arbitration (2020-2023) (“Rob is one of the most effective advocates of his generation”; “a master at reading cases and interpreting legal text”; “formidable on his feet and quick to read the hearing room”; “strong work ethic and excellent client service”)
Ranked as Leading Junior (The Bar - Asia-Pacific Region) for international arbitration by Chambers & Partners (2023) (“Rob has a great pedigree. He is extremely smart and equally skilled in both commercial and investment arbitration.”; “Rob brings a 360-degree view to legal problems that enables him to find solutions where others don’t. His advocacy is strong, clear and compelling.”)
Ranked as a National Leader in arbitration by Who’s Who Legal: Australia & New Zealand & - Arbitration (2022)
Ranked as ‘Most Highly Regarded Lawyer (Barristers/Non-partners)’ among Future Leaders in the Asia-Pacific Region” by Who’s Who Legal: International Arbitration (2019)
Ranked as a Future Leader in arbitration by Who’s Who Legal: International Arbitration (2016-2019) (“bound to be a star”; “excellent advocacy skills”)
Ranked as ‘Up and Coming’ for international arbitration by Chambers & Partners (2018-2019) (“a future star in the arbitration world”; “smart, hard-working and always appears calm even in the most high-pressure situations”; “relentless in seeking to secure the best outcome for his clients”)
Ranked as a “Next generation lawyer” for international arbitration by Legal 500 (2016- 2019) (“a rising star”; “able to synthesise complex ideas and materials in a clear, concrete and simple manner”)
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Singapore International Arbitration Centre Reserve Panel for Arbitrators
New Zealand Law Society Law Reform Committee
Member, Arbitrators’ and Mediators’ Institute of New Zealand
Member, New Zealand Bar Association
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Articles
‘Old Seeland, New Netherland and New Zealand: Some Thoughts on the Possible “Discovery” of Investment Treaty Arbitration in New Zealand’ [2012] 43 VUWLR 687 (with Lucy Reed)
Seminar papers
Chairperson, New Zealand Law Society Seminar, Human Rights Intensive, October 2022
‘Declarations of Inconsistency under the New Zealand Bill of Rights Act 1990’, New Zealand Law Society Seminar, Human Rights Law – New Frontiers, May 2019
‘BORA and the Bureaucrats’, New Zealand Law Society Seminar, Using the Bill of Rights in Civil and Criminal Litigation, July 2008
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LLM (with first class honours), University of Auckland
LLB, University of Auckland
BA (Ancient History / Classical Studies), University of Auckland
